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Maintaining the Momentum Against Racial Profiling

Published: June 1, 2005

Maintaining the Momentum Against Racial Profiling
By Kirsten D. Levingston

Since September 11, political leaders from President Bush to Mayor Giuliani have done the right thing. They have urged the public not to view all people of Arab descent or all Muslims as “the enemy” even in this period of heightened anxiety. These condemnations of bigotry and racial prejudice remind us that crude assumptions based on race or ethnicity have no place in a democracy. This lesson applies to all of us including law enforcement. This principle of tolerance must be translated into a rejection of racial profiling by police and FBI agents as they go about their important work. And, as our leaders are urging, we must be vigilant about the evil of racial stereotyping throughout and after the immediate crisis.

African-American and Latino males have long known that police routinely misuse race as a proxy for suspicion. The decades-long struggle driven by communities of color against racial profiling of African Americans and Latinos surely has contributed to the post-attack calls for tolerance made by government officials. First, anti-profiling advocates brought the practice of racial profiling to the attention of a wider and whiter community. Second, they produced data illustrating the dimensions of the problem. And finally, they named it. Recall that there was a time when the phrases “racial profiling” and “driving while black or brown” did not exist. In contrast, within days of the terrorist attacks, a commentator described the mistreatment of certain people at airports as a function of “flying while Arab or Muslim.”

This convergence of concerns about the place of civil liberties in our response to terrorism, and the growing awareness, prior to September 11, of the prevalence of racial profiling, presents a rare opportunity to change significantly perceptions about race. Last week, the New York Court of Appeals heard argument in three cases that could result in the court translating the rhetoric of justice into just police. The legal question is whether the New York Constitution permits police to make pre-text stops vehicle stops made on the pretense of a traffic violation as a basis for engaging in a wide-ranging search for which they have no basis. The overriding question is whether the Court of Appeals will take an important stand on tolerance recognizing as it has in the past that race should not be a proxy for suspicion.

New York’s 100 Blacks in Law Enforcement Who Care has shown the courage to criticize current police practices and has joined the controversy before the New York Court of Appeals. Rather than condoning sham stops that actually detract from an officer’s ability to fight crime, 100 Blacks has urged the Court to maintain existing guidelines that for years have cabined police discretion in order to increase the likelihood that police stops are legitimate. But more can be done. In addition to placing reasonable limits on police discretion, state and local law enforcement organizations should collect the information they need to know whether or not their stop and search practices are fair. This means collecting and analyzing data about stops. And, following the President’s and Mayor’s lead, state, local and federal law enforcement leaders should demand that their officers avoid using racist stereotypes, and develop protocols to help identify and end such conduct.

Fourteen years ago, giving a speech about civil liberties in times of security crises, Justice William J. Brennan, Jr. observed, with characteristic hopefulness, that, “in this crucible of danger lies the opportunity to forge a world-wide jurisprudence of civil liberties that can withstand the turbulences of war and crises. In this way, adversity may yet be the handmaiden of liberty.”

Those of us working to stop police from using race as a proxy for suspicion join Justice Brennan in the hope that the “crucible of danger” in which we now live does, in fact, produce a heightened awareness of the evil of racial profiling. To benefit all Americans, civil liberties must be able to withstand not only war and crises, but also deeply ingrained racial prejudices. Achieving this goal would mark one of our nation’s greatest victories.

Kirsten D. Levingston is director of the Criminal Justice Program at the Brennan Center for Justice at NYU School of Law.